Incidental Findings in the ED—Another Whopping Award, Another Failure to Communicate

The standard of care is that if there is a significant unexpected finding, the radiologist should make a reasonable effort to see that the referring physician receives and understands the report. It’s easier said than done.

Leonard Berlin, MD
September 17, 2019

In an all-too-familiar scenario, the patient entered the ED with pain and urinary problems, the emergency physician ordered a CT, and the radiologist issued a report identifying kidney stones, and, incidentally, a rounded area of high density in the bladder that warranted follow-up. The patient was not made aware of the incidental finding.

The latest sensational headline featuring a radiologist and an emergency physician appeared last month in The Morning Call, Lehigh Valley, Penn.’s daily newspaper: “Couple Awarded $8.5 Million in Medical Malpractice Case.”

The ED is a particularly challenging setting for ensuring that incidental findings are communicated in an actionable way. Strategic Radiology is the recipient of a grant from the charitable foundation of the medical liability insurer Coverys to address the problem, and eight member practices are collaboratively exploring methods to investigate ways to communicate these findings directly to patients.

For comment on the recent case, we reached out to Leonard Berlin, MD, one of radiology’s leading voices on the connection between failed communication and malpractice litigation in radiology. We found him vacationing at the (George Bernard) Shaw Festival in Niagara-on-the-Lake, Ontario, Canada.

“This business about failure to inform patients of their test results is a real problem,” he begins. “Failed communication cases are increasing: They are higher today than a year or two ago, and they were higher a year or two ago than they were a year or two before that.”

A Glittering Example

One exception to this trend is mammography, and that is not coincidental, Berlin says. The 1998 Mammography Quality Standards Reauthorization Act required that providers of mammography services notify patients of their results within 30 days.

“Before then, nothing was ever done, and since then, it’s had a wonderful effect: We have never seen another lawsuit claiming that the mammography report was not given to the patient,” Dr. Berlin reports. “Mammography aside, failed communication is an increasing problem in medicine and specifically in radiology.”

The recent case was filed in 2017 and involved a male patient who visited the ED at St. Luke’s University Health Network in 2015. Two years later, the man underwent a bladder ultrasound, and multiple tumors were identified. According to court documents, neither the ED physician or the radiologist informed the man or his primary care physician about the results of the exam undertaken in the ED in 2015.

The jury awarded $10 million in damages, with 60% of the negligence attributed to the radiologist and 25% to the emergency physician; the plaintiff was held responsible for the remaining 15%, reducing the award to $8.5 million. The plaintiff is currently cancer-free after undergoing bladder and prostrate removal, as well as chemotherapy. 

Standard of Care

The attribution of negligence and proportions assigned were not atypical, according to Dr. Berlin. “The radiologist sends the report to the referring doctor, and he doesn’t read the report,” he observes. “Some studies indicate that at least 15% of doctors don’t read radiology reports, and that data is probably too low. I think it is higher, much higher, and it’s a problem.”

On the other hand, radiologists are busier than ever, reading more cases per day, making it more difficult to directly communicate significant unexpected radiological findings to ordering physicians. “The standard of care is that if there is a significant unexpected finding, the radiologist should make a reasonable effort to see that the referring physician receives and understands the report,” he explains. “It’s easier said than done. If for some reason the radiologist claims that he or she sent the report, and the attending doctor says he or she never received it, then they both may be liable—which is probably what happened in this case.”

Hospitals typically do not share in the responsibility unless they employ the physician, but that is likely to change in Pennsylvania, which passed a law requiring that any radiological study with a significant abnormality has to be sent to the patient. According to Dr. Berlin, Pennsylvania is the only state in the U.S. that has such a law, but it is not likely to have been a factor in this case, which predates the law.

As with the MQSA, hospitals and outpatient sites where medical imaging is provided could be held liable under the new Pennsylvania law for failure make patients aware of significant incidental findings in radiology reports.

Key Takeaways

Dr. Berlin emphasizes that the law—as well as the recent court decision—in Pennsylvania is a reminder that if radiologists have a significant unexpected finding, they have a duty to have reasonable assurance that the report reaches the referring doctor.

He suggests that radiologists note in the report how and to whom the unexpected significant incidental findings are communicated. If a radiologist calls the referring physician with a significant incidental finding, and a nurse answers and says the physician is busy and offers to deliver the message, then the nurse’s name needs to be notated on the report.

“Failed communication between radiologists and referring physicians of significant unexpected findings is unfortunately still increasing, and it is causing an increase in lawsuits,” he concludes.  “Fortunately, the radiological and general medical communities are working hard to solve this problem.”

Strategic Radiology’s initiative to explore methods to communicate incidental findings directly to patients with a focus on lung, renal, and adrenal masses is one strategy being explored in the community hospital setting. The eight participating practices will share the results of their efforts this time next year.

Access the newspaper report


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